Hollander v Auckland Council - [2017] NZHC 2487

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2016-404-2322 [2017] NZHC 2487

BETWEEN
STEPHEN HOLLANDER

Appellant

AND

AUCKLAND COUNCIL Respondent

Hearing: 4 September 2017

Counsel:

M E Casey QC and A J Davidson for Appellant

N M H Whittington and M G Wakefield for Respondent C E Kirman and A K Devine for Housing New Zealand Corporation

Judgment:

11 October 2017

JUDGMENT OF HEATH J

This judgment was delivered by me on 11 October 2017 at 2.15pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
Berry & Co, Queenstown Meredith Connell, Auckland Ellis Gould, Auckland Counsel:
M E Casey QC, Auckland

HOLLANDER v AUCKLAND COUNCIL [2017] NZHC 2487 [11 October 2017]

CONTENTS

The appeal  [1] Background  [7] The zoning options  [11] The Panel’s reports  [18] Evidence in relation to the Land  [30] Competing contentions  [35] Appellate review principles  [42] Reasons and sufficiency of evidence
(a)      Reasons  [48]
(b)      Sufficiency of evidence  [76] Did the Panel apply the statutory test correctly?  [82] Result  [85]

The appeal

[1] Mr Stephen Hollander appeals against a zoning decision made by Auckland Council (the Council). Mr Hollander and two others (the Landowners) challenge the zoning of an area of land at Dairy Flat, a north-Auckland suburb, comprising 97.5 hectares (the Land), as Mixed Rural, rather than Countryside Living.1 The decision was made under special legislation enacted to accelerate the preparation of a combined plan for the Auckland region, following the amalgamation of several territorial authorities in 2010.2

[2] The Council’s zoning decision on the notified version of the Proposed Auckland Unitary Plan (the Proposed Unitary Plan) was made under s 148(1)(a) of the Local Government (Auckland Transitional Provisions) Act 2010 (the Transitional Act)3 and was based on recommendations made by an Independent Hearings Panel (the Panel)4 established by that legislation.

[3] The Land was subject to a Mixed Rural zoning in the Proposed Unitary Plan. Before the Panel, the Landowners sought to change the zone to Countryside Living. Evidence filed on behalf of the Council supported that submission. No contrary submissions were made. Nevertheless, the Panel recommended, and Council
confirmed, the Mixed Rural zoning.

1      The nature and purpose of the Mixed Rural and Countryside Living zones are set out at para [16]
below.
2      Local Government (Auckland Transitional Provisions) Act 2010. See para [7] below.
3      Section 148(1) is set out at para [61] below.
4      See para [7] below.

[4] Section 158(4) of the Transitional Act5 limits appeals to the High Court to questions of law.6 Mr Casey QC, for the Landowners, identified three categories of error:

(a) Errors relating to the evidence:

(i)Issue one — Was the Panel’s finding on the zoning of the Land reached without evidence, or was it a conclusion to which the Panel could not reasonably have come on the evidence before it?

(ii)Issue two — Should the Panel have taken into account, as a mandatory relevant factor,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Hollander v Auckland Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] NZHC 2487
Decision Date: 11 October 2017

CaseChat Overview and Summary

In Hollander v Auckland Council, the Court considered an appeal by Mr Hollander and two others (the Landowners) against a decision by the Auckland Council (the Council) to zone 97.5 hectares of land at Dairy Flat, a north-Auckland suburb, as Mixed Rural, rather than Countryside Living. The decision was made under special legislation enacted to accelerate the preparation of a combined plan for the Auckland region. The appeal was brought under s 158 of the Local Government (Auckland Transitional Provisions) Act 2010 and limited to questions of law. The Landowners argued that the Panel, established by the special legislation, erred in its recommendation to the Council to zone the Land as Mixed Rural, rather than Countryside Living. The Landowners contended that the Panel's finding was reached without evidence or was not a conclusion to which the Panel could reasonably have come on the evidence before it. They also argued that the Panel failed to take into account the agreed position of the Landowners and the Council, and relevant supporting evidence, as a mandatory relevant factor, and that the Panel failed to apply the correct legal test in terms of the appropriate zoning for the Land. The Court found that the Panel was not obliged to adopt aligned positions taken by the Council and a particular submitter. The Panel's approach was based on the need to synthesise submissions and to complete an evaluation in terms complying with ss 32 and 32AA of the Resource Management Act 1991. The Panel's recommendation that the land be zoned Mixed Rural was adequately supported by the evidence. The Panel's approach was in accordance with its statutory functions, and it did not apply a wrong legal test. The appeal was dismissed.

Orders